When you received these reports, did you interest yourself in them at all?
A. Well, I confined myself to passing on these reports to my superior agency-that was the Corps. That finished my share in this matter.
Q. General, was it possible that when one of these units that was not subordinate to you indulged in an indiscriminate execution of hostages, that was likely to stir up more strife and cause more unrest and trouble in the division area? Is that possible?
A It is possible certainly, but I have not been able to ascertain such major unrest or disorder at the time when I was there. On the contrary, I think a certain amount of law and order was restored by these measures. I do not know and I cannot recall as to whether the sabotage acts decreased substantially. I can not state that numerically, but I believe as I have said that these rather harsh measures did contribute on the whole to restore some law and order, especially with regard to the activities of the partisans.
Q In this particular entry, which you have before you here, there are references to two previous daily reports of the 173rd Reserve Division; one of them was the daily report apparently which dealt with the act of railroad sabotage and the other one was a report, which dealt with an attack on a patrol; you see what I mean?
A Yes, I do.
Q What kind of a patrol was that?
A I cannot say that, I cannot learn from this report whether it was a patrol of the Railroad Security Service or a patrol of the Division troops. I cannot say that now at this stage.
Q It is bound to have been one or the other in any case, there were no other patrols there?
A Very likely.
Q Very well, we can pass on to the next. Look at page 81 in your book, it is page 33 of the English. This is again a report concerning activities in the area of the 173rd Reserve Division, it says; "as reprisal measure for a railroad attack, four inhabitants from this particular village were hanged and it goes on to say that this operation was executed by Panzer Platoon 64 and units of the Grenadier Reserve Battalion 46; to whom was Panzer Platoon 64 subordinate?
A I cannot say that, I don't know. I cannot recall this operation.
Q Well, you remember the outfit, the Panzer Platoon 64?
A There was a Panzer platoon there, but it was not subordinate to me. To my knowledge, it was under the command of the Corps or of the Railroad Security Division.
I cannot say that.
Q Alright, what about Grenadier Reserve Battalion 46?
A The Grenadier Battalion belonged to the division, it is apparently parts of this Battalion 46 which are concerned in this report. According to this report, this operation was executed jointly with Panzer Platoon 64.
Q Well, have you read it? You say you looked over all these documents, which I showed you before General. This was one of the ones you looked over, wasn't it? I believe it is mentioned in your affidavit.
A I cannot recall it just now.
Q Well, you say here in your affidavit under paragraph 6 that you have been shown the following letters from document NOKW 658; that is what you are looking at here and the tenth one listed is the daily report dated December 3rd?
A Yes, that is true.
Q Now, doesn't it appear to you that these inhabitants were hanged by an outfit which was subordinate to your division, or at least that this outfit, which was subordinate to your division, in conjuction with this Panzer Platoon, hanged these four people; can you put any other interpretation on this?
AAt any rate the Reserve Pioneer Battalion 46 were not to be made responsible for this measure if in fact it was carried out.
Q I did not understand you, General, maybe what you said was not correctly translated?
A I am of the opinion that parts of the Reserve Battalion 46, as stated in the report, are not to be made responsible or to be held responsible for the shooting or hanging of bandits which appears in this report. I don't know whether such a report was ever made by the 173rd Division to the Corps.
Q Well, how would the Corps receive its information about activities of elements of the 173rd Division?
A The reports were transmitted to the Corps, reports on these incidents, but as I said, I cannot recall the details of them, and I can only repoat that I do not know that any reprisal measures of this kind, hanging or shooting of hostages, were ever carried out by troops of any units of the 173rd Reserve Division.
Q Well, General, you don't deny that this report says fairly clearly that one of the elements of the 173rd Reserve Division acted in conjunction with another unit to hang these four people, do you? There is no ambiguity about this; is there?
A Of course the report reads that way, certainly.
Q Now, you said in the body of your affidavit itself that you had been shown these reports and that not a single incident of this kind had happened in the Corps area; now what I am trying to do is to reconcile what you now say with what you said in your affidavit?
DR. GAWLIK: I object to this question on the grounds that this question does not reflect what is said in the affidavit. The affiant in his affidavit did not state that no incidents did happen in the area of the 173rd Division, he merely said he thought it was impossible that any of the reprisal measures referred to in these reports was carried out by troops of the 173rd Reserve Division. If the question is phrased in such a way as to refer to this sentence, then I withdraw the objection.
MR. FULKERSEN: That is the sentence to which I have reference.
THE PRESIDENT: The objection will be over-ruled.
MR. FULDERSEN: Would you please.....
THE PRESIDENT: You can rephrase it and direct it to the matter which you particularly have in mind.
BY MR. FULKERSEN:
Q What is your explanation, General, as you say and as you said here this morning on the witness stand that your division never carried out these reprisal measures; what is your explanation for this report?
A The Panzer Platoon was not subordinate to me. If elements of the Pioneer Battalion 46 at one time were placed at the disposal of Panzer Platoon 64 and they carried out this operation, which is quite possible, then the commander of the Panzer Platoon 64 probably will have to be held responsible for it.
Q Why, why he more than the commander of the Grenadier Reserve Battalion 46?
A The commander probably was not assigned in this operation, because it only says elements of the Granadier Battalion, which were locally available in order to help the Panzer Platoon 64, that at least is my assumption.
Q Well, as a matter of fact you don't know who was in command at the time of this joint operation of these two battalions do you?
A No, I don't know that.
Q So that you statement that probably the commander of Panzer Platoon 64 is to blame for this is just wishful thinking on your part.
A It is not wishful thinking on my part, that is my view in this matter.
Q Do you remember an order that came to you from General Rendulic's headquarters that had to do with the execution of hostages; I believe it was dated 15th September 1943? Do you recall such an order, I can give it to you if you don't?
A Yes, I do recall it, such an order was also referred to in my affidavit, it was received by the division.
Q I think it would be clearer, General, if you had the text of the order before you?
A certainly.
Q Would you like to look it over for a moment before I ask you about it?
A Yes, I should.
THE PRESIDENT: Perhaps you can direct your inquiry to the particular matter, so it won't be necessary for the witness to read the entire document.
MR. FULKERSON: Yes sir.
BY MR. FULKERSON:
Q When did this order first come to your attention, General?
A I cannot say that, I don't know when it arrived at our division at any rate after 15th September, but what date it reached the division I cannot recall at the moment.
Q You remember the order, don't you?
A Yes, I do.
Q Now, how was it you say that this order was not carried out by your division?
A The order was not carried out and moreover the not carrying out of the order was never criticized by the superior command. As I started also in my affidavit; I never saw the necessity to exclude the Croatian authorities in the matter, so that they should not order or enforce executions of the kind described.
Q Who ought not to carry out the order?
A The troops, our own troops; in all instances I wished to exempt the troops from this bloody business.
Q Now, whom did you talk to about this?
A I discussed it with the commanders, also with my 1a and 2a. My 1a was Colonel Kaudewitz, who also executed an affidavit which was confirmed to me verbally that I was supposed to have said at the time...
Q Well, never mind about that. Now did you ever talk to General Dehner about it?
A I believe at that time I also discussed with General Dehner, but I cannot recall the official discussion in detail, but I always had the impression that General Dehner, as far as the attitude of the division and my orders were concerned, that he agreed with them.
Q Well, did you decide and on your own assume responsibility to ply into the teeth of an order of the Second Panzer Army, or did you do it after having discussed the matter with your immediate superior?
A I cannot say that now whether I previously discussed this with General Dehner, or whether I did it on my own initiative originally, I cannot recall that anyone any discretion in how it was to be carried out, that is to say how this fixed ratio of 50 hostages to be killed for each German soldier killed and 25 hostages to be killed for each German soldier wounded; did you interpret that as mandatory on you or directory only?
A I believe that whoever thought themselves authorized to carry out such reprisal measures, in accordance with the order, was also impowered to reduce the number, the ratio, as stated. It says here; as a rule.... It doesn't say it is the lowest figure for reprisal measure, which applies, it does not say it is a minimum, or a maximum.
Q Do you didn't think that some discretion was to be allowed in the matter?
A I believe I did.
Q Now, you say that General Dehner was in agreement with you as to your attitude that this order ought not to be carried out?
A I had that impression, yes I did.
Q Suppose General Dehner had been of the opposite opinion and had been in favor of carrying this out, was he in a position to order you to carry it out?
DR. GAWLIK: Objection to the question. May it please the Tribunal, in the first place it is a hypothetical question and is inadmissable for that very reason and in the second place this is purely argumentative. The witness is not asked to testify what General Dehner did, but what he would have done.
THE PRESIDENT: Over-ruled.
THE WITNESS: I have no judgment on this. I can well imagine that if General Dehner did not agree with my measures, that then he would have let me know, but I do not know whether General Dehner was authorized to issue an order to me regarding these reprisal measures.
BY MR. FULKERSEN:
Q Well, suppose it had been the other way around, suppose you had received the order and had felt you should carry it out and General Dehner had not agreed with it. Was he in a position to restrain you from carrying it out?
DR. GAWLIK: Objection to this question for the reason that the witness has stated he cannot voice an opinion on the topic, thus the affiant has answered the question.
THE PRESIDENT: He may answer if he knows and state his judgment on the matter.
THE WITNESS: Well, I can only repeat that I have no opinion, no judgment on this matter and today of course I do not know what I would have done at that time if a special case had arisen.
BY MR. FULKERSEN:
Q Now, General, here we have an order issued by the Second Panzer Army and under the Second Panzer Army was the 69th Corps and under that is your division, now you received the order and you say that in your opinion someone was allowed some discretion as to how that order was to be carried out; is that right?
A Yes, inasmuch as it is also written here that reprisal measures in Croatia are as far as possible to be carried out by the Croatian police, proveded they are supervised by organs of the field police, fieldgandarmers or SD that was as far as possible.
Q Now, you have not answered my question, General, I am sorry I hate to interrupt you. Now, you said you thought that this order allowed some latitude or discretion in carrying it out?
A Yes, for him who felt called upon and bound in duty to carry out the measures.
Q Now do you think that you yourself, as a divisional commander, had some discretion in carry in it out?
A On my part, I never interpreted this order as meaning that I was bound in every instance to carry out such measures in every case.
Q. In other words, it was up to you to a certain extent, the way you interpreted it, as to whether it would be carried out or not?
A. That was my view.
Q. But your testimony is that Lieutenant General Dehner, your superior, could not exercise any discretion in this matter at all.
A. I believe that I didn't say that.
Q. All right, please give us your views on that. What discretion did General Dehner have?
A. I, on my part, cannot give any information on this. I think General Dehner himself is best qualified to enlarge on this.
Q. Well, here's what General Dehner said about it; it might have occurred in individual cases that the divisional commanders did it -- that is, carried out reprisal measures -- we know that they used their right given them in the Army order. But he also said that if the order was carried out, that the blame or responsibility for exercising the discretion which you described lay on the divisional commanders, and not on him. Do you agree with him? I am referring to Pages 8055 and 8056 of the transcript.
DR. GAWLIK: May it please the Tribunal, I request that the witness be given the record. The last part, I think, has not been read from the record. Will you please submit it to the witness so he, himself, is able to read it for himself? The last part is merely a summary from the record, but it is not actually the wording of the record. I think it is imperative that the witness be furnished with the full text of General Dehner's testimony if this is admitted at all, as it is a pure matter of argument.
MR. FULKERSON: I am perfectly willing for the translators to read it to him, unless he reads English.
THE PRESIDENT: The part to which you have made reference, you will read that part in English. It will, in turn, be translated. You will refer to the page and line, so it will be in the record. I think that will meet the situation.
MR. FULKERSEN: This is General Dehner's testimony.
THE PRESIDENT: Pardon me, General von Behr -
THE WITNESS: Yes.
THE PRESIDENT: The prosecutor is reading from a document that you apparently do not have, so if you will give attention to the question he is propounding, it might be advisable.
MR. FULKERSEN: I am reading from the transcript of the afternoon session of December 19, 1947, on page 8055. This is General Dehner's testimony:
"I could not issue the order to shoot hostages. That authority has been once and for all vested in the divisional commanders by the highest headquarters.
"Question: Well, who, then, had this latitude, this discretion you are talking about if you didn't have it? You are saying now that the divisional commanders had it, but that you didn't?
"Answer: This becomes quite clear from the order. The divisional commander is the responsible man for the various reasons which I have given on direct examination."
Then from page 8056:
"It might have occurred in individual cases that the divisional commanders did it, in fact, that they used their right which was given them in the Army order. Of course, I discussed these things with the divisional commanders, but what I discussed I can't pay in detail."
Now, I ask you again -- you say that you, as a divisional commander, had a certain amount of latitude and discretion in carrying out or not carrying out this order. Do you also say that you were the only person who had any discretion in carrying out and deciding whether the order was or was not to be carried out within your divisional area?
A. I cannot recall as to whether I alone was the person who was to be held responsible and bear the responsibility. That was where the corps commander was precluded. It is possible, but as I said before today, I cannot give the desired answer today, as I feel and believe that the divisional commander who was especially close to the troops and in charge of these matters, that within his divisional area, he was the only person responsible for giving such orders, and that accordingly, the corps commander ought to have been precluded from this responsibility from the giving of such orders, because he was more removed and could only gain an insight into these affairs from the reports furnished to him; whereas, the divisional commander is on the spot, and can decide and ascertain as to whether a reprisal measure is justified or not.
Q. General, in the 8th paragraph of your affidavit you take up the operation Kammerhofer.
A. Yes.
Q. When did this operation take place?
A. I can't say with certainty. It may have been in October, the end of September or October, I can't say with certainty. But I think it is in the document book.
Q. Never mind the document book. Did you ever hear of another operation called Ferdinand?
A. I can't remember it.
Q. Can you remember one called Arnim?
A. No, I don't either.
Q. Do you remember any operation in which police troops during the year 1943 carried out an operation in conjunction with the Wehrmacht?
A. I believe that something of that nature took place with a certain group, Lecimir or Kuberevci. These two names I do recall.
Q. Did your division carry out an operation in conjunction with the first Cossack Division right after the first Cossak Division arrived in Croatia?
A. I don't think so. I can't recall that ever having happened.
Q. It's still your testimony, is it, that you don't know of a single case of a reprisal measure which was ever ordered by the troops of the 173rd Infantry Reserve Division the whole time you were its divisional commander?
A. When I was in charge of the Division, yes, I do maintain that. For about three or four weeks there was a period when I was on leave. I was not present. What happened in that period, of course, I cannot say but even during that period I have been informed by my Deputy and I have not learned that in my absence anything of the kind happened.
Q. Within your corps area, General, I mean within your division area -
A. Yes.
Q. -- were you the highest German authority?
A. The German authority? Yes, the highest German authority being the commander. But after all there was the Croatian authority, Croatia being a sovereign state, so that they exercised power and I regarded myself and my troops merely as being there for the protection of the country.
Q. Was it possible for German units who were not directly subordinate to you to wander around in your corps area within your division area without your being apprised of where they were or what they were doing?
A. That was quite possible, especially seeing that the police were completely independent, and whenever a police operation was carried out, then I was not previously informed, but only when the operation started, and I had no influence whatever if I thought the operation was in expedient to stop it.
Q. Did you ever make any complaints to your Corps about activities of the police within your division area which you thought were reprehensible?
A. Yes, I did. I have done that repeatedly, I think. I cannot recall details, individual cases. Above all, I didn't like the idea of the 1st Cossak Division appearing on this scene.
Q. I am asking now about the police, not about the 1st Cossak Division.
A. Yes, as I have said, I repeatedly made complaints in writing or verbally.
Q. What were the nature of these complaints? Do you know?
A. As I have already said, they dealt mainly with the fact that I was not informed in time of these operations, that these operations were often carried out with inadequate means so that only set-back could result from them and the troops after the police withdrew only had to suffer from the consequences -- from the consequences, that is, the greater unrest of the partisans who had been touched in this operation.
Q. Well, as a result of these complaints of yours, what was done, General?
A. I don't know. I do not recall that upon my complaints any measures were taken on the part of the Corps or were carried out and I don't know any longer whether such measures were communicated to me.
Q. Where did the police in your Corps area get their ammunition from -- in your Division area, I'm sorry?
A. I can't say that. I believe and I dare day that the police obtained their ammunition that they brought them along themselves, but I cannot say with certainty.
Q. Where did they get their transports?
A. The police you mean or the Wehrmacht?
Q. Where did they get their food and supplies?
A. I don't know that either.
Q. Did you ever try by direct means to restrain the police and to change their method of operation so that it suited you?
A. I believe that I may occasionally have talked with Kamnerhofer regarding his operations, but I don't know whether that could be termed as a direct influence, or whether I had discussed it with him in that way. I really can't say that from memory. It's too long since it happened.
Q. You say that the gist of these complaints which you made to the Corps was that these police troops were constantly biting off more than they could chew, that they were attempting to do too much with too few troops -- was that the substance of it?
A. Not always. Now and then, of course, that did happen. At least that is what I meant to convey and, of course, that did happen. Sometimes I should have preferred it if they had never undertaken operations, but if they had refrained from such operations.
Q. But that was the gist of your complaints to the Corps about the police?
A. I think so, I think that was as you suggested.
MR. FULKERSEN: Take the witness.
REDIRECT EXAMINATION BY DR. GAWLIK:
Q. Witness, I shall now submit to you once again the teletype dated the 3rd of December 1943 from document book 16 on page 81 of the German version. Unfortunately, I don't know the page number of the English version. It's a teletype which the prosecution has already submitted to you before. Did you issue the order for the killing of these persons?
A. No, indubitably I haven't.
Q. In the teletype there is a mention of elements of the Pioneer Battalion. What did you understand by the term "Elements"?
A. This may refer to a Company. It may refer to two Companies. It may also refer to single groups or to Platoons, according to the purpose to which Pioneers were assigned, whether they were assigned as combat troops or for technical reasons, to build a bridge or to effect some repairs, etc.
Q. Could the leaders of these elements of the Pioneer Battalion, could they order any such reprisal measures?
A. No, in my opinion they could not. Reprisal measures would have to be ordered by the Divisional Commander.
Q. Can you comment on the question as to whether elements of the Pioneer Battalion might have ordered these reprisals?
A. Everything is possible. Everything may happen, but I suppose that it did not happen.
Q. Did the Croatians also have Panzer platoons?
A. I don't think they had a Panzer platoon, but I can't say with certainty. I only know about the German platoon which was assigned in this case.
Q. Going by this short telegram style report which I have here, can you make any statement as to the objective of the operations, especially regarding the elements of the Pioneer Battalion? Perhaps, General, could you answer first whether you can comment on that question at all?
A. That can hardly be gleaned from this short report.
Q. In the course of cross examination by the prosecution you were also shown the Army Order dated 15th of September '43. If I understood you correctly, you said that according to this Army Order it was actually within the discretion of the Divisional Commander to order reprisal measures, is that correct, General?
A. Given the condition that the prerequisites were there for taking such an action.
Q. Can you once again explain as to why, in Croatia regarding this very Army Order, conditions were very different? How can you deduce that fact?
A. The Croatian State was a Sovereign State and the German Wehrmacht partisans armed forces were there merely as a protective power for the Government, in order to protect the Government and the population against excesses on the part of the partisans etc. Consequently, it ought to be within the power of the Croatian State to order such incisive measures and to carry out such incisive measures as the killing of people.
Only in an emergency when the security of the troops required it and made it imperative would the Divisional Commander, by virtue of this order, be impowered to order these reprisal measures but as I have said, while I was in charge of my Division I never thought that there was a necessity for doing it.
Q. General, you went on to answer the question of the prosecution as to whether you were the highest German authority in the Divisional area. You affirmed that question. What did you mean by the term "highest authority"?
A. The highest Command authority, the highest Military Command.
Q. Did you also have the sole responsibility within the Divisional area over all other agencies?
A. No, certainly not.
Court No. V, Case No. VI.
Q What agencies were not subordinate to you?
AAll such agencies and commands as did not belong to the divisional troops. For instance, the police were not under my command; the Croatian authorities were not under my command and any other German civilian agencies that might have been there. I can't recall what German agencies there may have been in my then area of command.
Q Could you give orders to the German police within your divisional area?
A No.
Q Was Kammerhofer subordinate to you?
A No.
Q Were the police territorial commanders subordinate to you?
A No.
Q One witness testified before this Tribunal that the German police in Croatia was unable to do anything at all without the agreement or consent of the Wehrmacht and the Army authorities. Can you comment on that? Was that also the case in your divisional command?
A No, not at all. I have already emphasized that I was very often surprised by the appearance of the police and was frequently surprised at them but that I had no influence at all on their attitude, on their behavior and their carrying out certain measures.
Q And how was the relationship with the Croatian armed forces?
A The Croatians, the Croat elements were independent in my opinion. There was a certain liaison between me and them but there was in the main no relationship of subordination and I cannot recall exactly whether a relationship of subordination did come about in the last few weeks. I can't recall that. At any rate such subordination, if it did exist, must have been purely tactical. I had no liaison officer, no Croat liaison officer.
Q Did you have the opportunity and possibility as Divisional Commander, when you gained knowledge of the fact that the German Court No. V, Case No. VII.
police planned some kind of enterprise, and wanted to carry it out, to give an order to restrain the police from doing it?
A No, I did not have any such possibilities.
Q Could you in the carrying out of such operations by order of the police intervene in any way and in any way have any influence upon the operation?
A No, I couldn't do that either.
Q General, you were asked whether you had any complaints and whether you made such complaints to the corps about measures of the police. In order to support and refresh your memory, General, I will submit to you a document from Document Book XIV; that is page 28a. Do you now recall this incident?
A This incident happened in my absence when I was on leave but I do recall it. I certainly do recall it.
DR. GAWLIK: May it please the Tribunal, I beg the pardon of the Tribunal. It is Document NOKW-509, Exhibit 340, page 48 of the English text and page 284 of the German document book XIV.
A Of course I learned of this operation upon returning from my leave but I myself cannot comment on this affair because at that time I was not present. My Ia, Lieutenant Colonel Kaudewitz, reported to me on the details.
MR. FULKERSON: Your Honors, I thought it was unnecessary to object after the last answer.
THE PRESIDENT: There is no objection pending.
MR. FULKERSON: I object to the witness's testifying to things he was just told by someone else.
THE PRESIDENT: Am I to infer that is an objection on the basis of hearsay?
MR. FULKERSON: Yes, your Honor.
DR. GAWLIK: I am surprised that the Prosecution did raise the objection because the whole material of the Prosecution is founded on.....
Court No. V, Case No. VII.
THE PRESIDENT: Objection overruled. Proceed.
Q What do you know about this incident from your own knowledge, or rather, what did your Ia, Kaudewitz, tell you about it?
A Substantially such as is put down in this report.
Q In cross examination you were asked whether you could state any complaint of the 173rd Reserve Division to the corps regarding the behavior of the police. Can you now supplement the answer which you gave then, on the basis of this document?
A Hardly; I cannot recall details.
Q Did this incident have any reference to the complaints to the corps, complaints made by the 173rd Reserve Division about the police?
A Yes, it does.
DR. GAWLIK: Thank you. I have no further questions.
THE PRESIDENT: Are there any other defense counsel who wish to interrogate this witness? Any further examination on behalf of the Prosecution?
MR. FULKERSON: No, your Honor.
THE PRESIDENT: Any questions by members of the Tribunal?
JUDGE CARTER: No questions.
THE PRESIDENT: The witness may be excused.
MR. FENSTERMACHER: If your Honor please, in order that there will be no unclarified innuendos hanging fire with respect to the letter which the witness this morning, Willy Finger, stated that he wrote to authorities here in Nurnberg, I would like to ask that he be recalled to the stand to answer just two or three questions of mine.
THE PRESIDENT: You may do so. The only thing the Tribunal is interested in is that there be no inferences that the Tribunal had received or had written anything, that is the only thing that I was interested in or that any of the members of the Tribunal was interested in. If you care to bring him back, you may do so but, Court No. V, Case No. VII.